SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 90
September 10, 2007

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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LEAKS LED TO IMPRISONMENT OF SOURCE, CIA SAYS

Unauthorized disclosures of classified information in the press led to the imprisonment of a CIA source and other damaging consequences, said Central Intelligence Agency Director Michael Hayden in a speech last week.

"Some say there is no evidence that leaks of classified information have harmed national security. As CIA Director, I'm telling you there is, and they have," Hayden told the Council on Foreign Relations.

"Let me give you just two examples: In one case, leaks provided ammunition for a government to prosecute and imprison one of our sources, whose family was also endangered. The revelations had an immediate, chilling effect on our ability to collect against a top-priority target."

"In another, a spate of media reports cost us several promising counterterrorism and counterproliferation assets. Sources not even involved in the exposed operation lost confidence that their relationship with us could be kept secret, and they stopped reporting."

"More than one foreign service has told us that, because of public disclosures, they had to withhold intelligence that they otherwise would have shared with us. That gap in information puts Americans at risk."

"Those who are entrusted with America's secrets and break that trust by divulging those secrets are guilty of a crime. But those who seek such information and then choose to publish it are not without responsibilities."

In his comments on unauthorized disclosures, Director Hayden did not address wrongful withholding of information, and did not acknowledge any reasons why American might be skeptical of CIA disclosure policies. "CIA acts within a strong framework of law and oversight," he said.

The text of his September 7, 2007 speech is here:

While leaks have been a perennial problem from the government's point of view, it does not follow that new legislation to combat them is a fitting solution.

"I am not aware of a single case involving the unauthorized disclosure of classified information that would have been prosecuted but could not be because of the lack of statutory coverage," said Attorney General John Ashcroft in testimony prepared for the Senate Intelligence Committee in 2001.

The Ashcroft testimony, dated September 5, 2001, represents a missing link between the testimony of Janet Reno on the same subject on June 14, 2000, and a subsequent report to Congress on leaks that was submitted by Mr. Ashcroft in October 2002.

The testimony was approved by the White House Office of Management and Budget, according to a handwritten notation on the document, but the scheduled Intelligence Committee hearing was cancelled and the Ashcroft testimony was never delivered.

A copy of the text was obtained under the Freedom of Information Act by Michael Ravnitzky.

PRESIDENT'S DAILY BRIEFS MAY BE WITHHELD, COURT RULES

Two editions of the President's Daily Brief (PDB) dating from the Johnson Administration may be withheld from disclosure by the CIA, a federal appeals court ruled last week.

The court deferred to a CIA argument that despite their age, the 40 year old records could compromise protected intelligence methods.

However, the court rejected a CIA claim that the PDB is itself an intelligence method that is inherently exempt from disclosure. As a result, each decision to withhold a particular PDB must be independently justified.

The records were sought by political scientist Larry Berman, who was represented by the San Francisco law firm Davis Wright Tremaine and the National Security Archive.

In explaining its decision, the appeals court suggested that CIA had too much legal authority to withhold information from the public.

The court noted its view that the Agency's authority to withhold is so expansive that it "might be contrary to congressional intent," and the judges recalled that in a 1992 decision (Hunt v. CIA), "we have invited Congress to 'take the necessary legislative action to rectify' that disparity."

"Congress, however, has to date left the NSA [National Security Act] materially unaltered and so we must continue to afford the CIA broad deference."

A copy of the September 4 appeals court ruling in Larry Berman v. Central Intelligence Agency is here:

See also "CIA briefs kept sealed: Court rules against UC Davis professor" by Sharon Stello, Davis Enterprise, September 5:

DOMINICAN REPUBLICAN RATIFIES CTBT

The Dominican Republic this month became the 140th nation to ratify the Comprehensive Test Ban Treaty that would prohibit all nuclear explosions, the CTBT Organization announced last week.

The Treaty has not been ratified by North Korea, China, Iran, Israel, India, Pakistan or the United States, among others.

NEW REGULATION ON ARMY COMMAND STRUCTURE

The organizational structure of the United States Army may be confusing to anyone who is not routinely involved with it, and probably also to some who are.

A new Army Regulation aims to clarify the missions and functions of each Army Command, as well as defining command relationships within and among the Commands.

See "Army Commands, Army Service Component Commands, and Direct Reporting Units," Army Regulation 10-87, 4 September 2007:

WORLD LAW BULLETIN

The World Law Bulletin is a monthly publication of the Law Library of Congress that reports on significant or interesting legal developments in countries around the world.

For its own peculiar reasons, the Law Library has declined to make this serial available to the public. (In response to insistent pleas, a derivative publication called the Global Legal Monitor was created last year for public release.)

But now a collection of back issues of World Law Bulletin, dating from October 2000 to March 2006, has become publicly available through alternate channels.

Its most enduring value may be in the legal responses to terrorism that are described in the months following September 2001. But the Bulletin also contains all kinds of legal odds and ends that one is unlikely to encounter elsewhere. ("Latvian lawmakers adopted a resolution that imposes weight limits on children's school bags following a study which concluded that 60 percent of Latvian students have posture problems.")

Copies of the World Law Bulletin dating from July 2001 to April 2005 were obtained by Michael Ravnitzky who kindly shared them.

The whole collection may be found here:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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